Thoughts of an activist lawyer

CIVIL SOCIETY AND ELECTORAL EVILS

I have been getting flak lately for a statement which I indeed wrote but has since been taken out of context. In an earlier column, I did say that I was “thrilled to be wrong” because the county’s first ever automated elections did not result in an automated failure of elections. It was foremost in my mind that a regime already suffering from sleepless nights for the mere possibility of being prosecuted not just for graft and corruption, but also for the unresolved extra-judicial killings and enforced disappearances, may be tempted to opt for an automated failure of elections scenario just to desperately hang on to power. The fact that the elections did not altogether fail was indeed a reason to be jubilant and thankful and hence, my oft-quoted “thrilled to be wrong”.

The thrill begins and ends, though, with the fact that there was no failure. All the issues that are now being raised by many of those who lost in the elections are the exact same issues that we brought to court as grounds to halt the conduct of the automated elections. Take for instance the belated decision of the Commission on Elections to do away with digital signatures. Under the rules on electronic evidence, a party litigant in court could not use electronic documents unless they are properly authenticated, And how does one authenticate electronic evidence? By presenting digital signatures. Obviously, the Comelec’s decision to altogether do away with digital signatures has made it impossible to use any of the automated documents utilized in the last automated elections. Moreover, without digital signatures, results could be sent to the canvassing servers even by precinct count optical scan machines that were not used during Election Day. There was simply no way that parties and the Comelec could find out where all these data were coming from in the absence of these signatures. This was why the discovery of PCOS machines in the residence of a Smartmatic technician in Antipolo generated shouts of protests and gasps of disbelief. It could very well be that these machines were used to transmit spurious results to canvassing units not just in Antipolo, but in other places as well.

We also argued that unless Comelec allowed uninhibited review of the source code, one would not have the assurance that the now famous CF cards read the votes correctly. It did not help at all that Comelec not only denied parties and watchdogs alike their statutory right to examine the source code, but acknowledged before a shocked nation that there was error in these memory cards and that almost all of them had to be replaced at the very last minute. The fact that these cards were changed in such a jiffy further gave rise to the suspicions that they may already contain pre-programmed results. Couple this with the snail pace by which the manual random audits are proceeding, you have all the basic ingredients for election fraud.

And yet, what is it now that those who criticize me and civil society want?

Many, I believe, want civil society groups like the Concerned Citizens Movement, the group that petitioned twice to halt the conduct of the automated elections, to go beyond our advocacy against the system. To all those who adhere to this view, I beg to differ for the following reasons: one, this is no longer the role of civil society groups such as the CCM. It is my belief that civil society exists to guard against excesses of government and to ensure that the social contract is complied with: that is, the agreement by the people to be governed by the state in exchange for governance that is responsible to their needs as a people. Our duty as civil society was to inform the public about the possible pitfalls that automation may bring forth against our democracy. Our role was to identify weakness in the hope that government would introduce safeguards to protect our sacred right of suffrage. The fact that the Comelec obviously failed to address all our concerns does not detract from the fact that by highlighting the vulnerabilities of the system in not one, but two petitions before the Supreme Court, we not only fulfilled our role to inform, but also ensured, through our vigilance, that those in the Comelec and Smartmatic exerted the kind of effort that they did. And yes, I do believe that had not it been for this vigilance, we would not have what we just had: an imperfect, but not a totally failed exercise. This is an accomplishment by itself.

Second, it is no longer the role of civil society to espouse the views of those who lost and are today crying fraud. Not when many of them were so viciously critical against our concerns about the vulnerabilities of the automated system. I personally opted not to attend any of the hearings of the Joint Congressional Oversight Committee on Automated Elections precisely because of one of its leading members was calling me names for warning against the pitfalls of the system. The fact that this same person is now one of those crying fraud is the ultimate irony.

The system is obviously imperfect and yes, almost all that we warned against, except for absolute failure, did happen. Do we completely stop our advocacy? Certainly not. If only because there is bound to be another automated elections three years from now, we should not relent in our efforts to implement further safeguard to secure our right to sanctity of the ballot. But this role is so different from what the lawyers for those who lost are currently doing; theirs is part of adversarial litigation, ours is pure advocacy. While civil society and these losers can certainly cooperate, I think it would be too much for the losers to expect civil society to fight their battles for them.

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2 comments on “CIVIL SOCIETY AND ELECTORAL EVILS”

. . . it is interesting to note how many Members of the House (not just the losing candidates) and the Senators (not just the losing candidates) are only now filing protests and questioning the many deficiencies and violations of the laws that were committed by Smartmatic and COMELEC combined, all of which were already integral elements of the petition filed by the CCM with the SC as early as July last year . . . it just shows that there are no fixed bidding rules and requirements, no fixed RAs, no laws . . . no transparency, no fairness, no justice . . . Smartmatic is going to go scot free with PhP Bs in their pockets and the Commissioners are going to get a mere slap on the wrist for the aggravation they caused the Filipino people . . . the COMELEC is another government body whose inherent mandate is to serve the general public’s best interest . . . does the service level we experienced from Smartmatic and COMELEC on the recent elections worth the PhP 11+B we paid for ? . . .